WHY PROTECT PRIVATE ARMS POSSESSION? NINE THEORIES OF THE SECOND AMENDMENT

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1 WHY PROTECT PRIVATE ARMS POSSESSION? NINE THEORIES OF THE SECOND AMENDMENT Michael Steven Green* INTRODUCTION The Second Amendment to the United States Constitution reads: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. 1 Until recently, federal courts adopted a collective-right interpretation of the Amendment. 2 According to this interpretation, the Second Amendment s scope is limited by its prefatory clause: the people have a right to bear arms only insofar as it contributes to a well regulated Militia. Furthermore, the term Militia refers to organized state militias, whose only modern equivalent is the National Guard. Under the collective-right interpretation, the Second Amendment protects the interests of state governments, not individuals. For this reason, only regulations of firearms that impair states abilities to arm their militias can be unconstitutional. 3 No challenged regulation has ever come close to this threshold Michael Steven Green. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format, at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision and copyright notice. * Professor of Law, College of William & Mary. Ph.D. (Philosophy), Yale University, 1990; J.D., Yale Law School, I would like to thank an audience at the University of Pennsylvania Law School, and especially Matt Adler and Stephen Perry, for comments on an earlier incarnation of this paper. Thanks also to Nelson Lund, Bill Van Alstyne, Jim Dwyer, Nate Oman, Torben Spaak, and an audience at the Faculty of Law of the University of Uppsala, Sweden for helpful comments on more recent drafts. 1 U.S. CONST. amend. II. 2 See, e.g., Gillespie v. City of Indianapolis, 185 F.3d 693, 710 (7th Cir. 1999); United States v. Hale, 978 F.2d 1016, 1020 (8th Cir. 1993). As we shall see, the choice of the term collective right is unfortunate. See infra Part II.A. 3 Indeed, the Ninth Circuit took the collective-right interpretation to what would appear to be its logical conclusion, ruling that individuals have no standing to 131

2 132 notre dame law review [vol. 84:1 District of Columbia v. Heller 4 changed all that. The Supreme Court, in an opinion authored by Justice Scalia, held that the Second Amendment protects an individual right to bear arms for purposes unrelated to state militia service, including personal self-defense, and struck down two gun control laws on the ground that they violated this individual right. 5 The District of Columbia s prohibition on most private ownership of handguns was unconstitutional because it banned a class of arms that is overwhelmingly chosen by American society for [self-defense]. 6 Its requirement that other firearms be kept disassembled or bound by a trigger lock or similar device that would render them incapable of immediate use was struck down because the law made it impossible for citizens to use them for the core lawful purpose of self-defense. 7 This Article will not discuss the textual and historical arguments Scalia offered in favor of his reading. I will assume that the Second Amendment protects an individual right to bear arms. At the same time, I will not address the normative question of whether the Second Amendment would exist in an ideal world that is, whether individuals interests in arms possession truly merit constitutional protection. The method of this Article can best be described as normative reasoning under constraint. Assuming that there should be an individual constitutional right to bear arms, what are the best normative arguments available in favor of this conclusion? What are the most plausible individual interests in private arms possession that such a right would protect? Such an inquiry would not be necessary if Scalia had provided a detailed account of these interests himself. To be sure, his opinion is challenge federal regulation of firearms on Second Amendment grounds. See Silveira v. Lockyer, 312 F.3d 1052, (9th Cir. 2002). 4 District of Columbia v. Heller, 128 S. Ct (2008). The decision in Heller was influenced by vigorous academic attacks on the collective-right interpretation over the past two decades, sometimes from surprising corners. See Akhil Reed Amar, The Bill of Rights As a Constitution, 100 YALE L.J. 1131, (1991); Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 MICH. L. REV. 204, (1983); Sanford Levinson, The Embarrassing Second Amendment, 99 YALE L.J. 637, (1989); Nelson Lund, The Past and Future of the Individual s Right to Bear Arms, 31 GA. L. REV. 1, (1996); William Van Alstyne, The Second Amendment and the Personal Right to Arms, 43 DUKE L.J. 1236, 1254 (1994); Eugene Volokh, The Commonplace Second Amendment, 73 N.Y.U. L. REV. 793, (1998). 5 Heller, 128 S. Ct. at Id. at 2817 (striking down D.C. CODE (a)(4) (2001)); see also id. at 2818 (describing the handgun as the quintessential self-defense weapon ). 7 Id. at 2818 (striking down D.C. CODE (2001)).

3 2008] w h y protect private arms possession? 133 peppered with references to the natural 8 or inherent 9 right of selfdefense. But he does not say why the natural right to self-defense exists or how it grounds a right to bear arms. Indeed, Scalia fails to answer what is surely the most fundamental question about the right to bear arms, namely whether it exists because it contributes to our safety. Granted, when I use arms in justifiable self-defense against a violent intruder, that act makes me safer. But a system of private arms possession, in which others (including the intruder himself) also possess arms, might increase my vulnerability to violence. Is Scalia saying that the Founders rejected this possibility? Was the Second Amendment enacted because a system of private arms possession was thought to make citizens safer than one in which they were disarmed? Or did they think individuals have some autonomy interest in arms possession worth protecting even in the face of increased violence? And if the Second Amendment does protect an autonomy interest, what is this interest? As we shall see, this matter is far more complicated than it might at first appear. In this Article, I will seek to identify the most plausible interests in private arms possession that might stand behind the Second Amendment, even if these interests would not justify the decision in Heller. For example, one possible justification for the Second Amendment is that it protects our democratic institutions by empowering citizens to rebel by force of arms against a tyrannical minority. Although this justification can explain why individuals, and not merely states, have Second Amendment rights, it fails to explain the result in Heller, since it gives us no reason to believe that individuals have constitutionally protected interests in the use of arms in self-defense against private violence. 10 I will concentrate, however, on interests that could justify the Heller decision. Indeed, an ideal account would justify, not merely the result in Heller, but the other claims that Scalia made, in dicta, about the scope of the Second Amendment. Most significantly, he argued that individuals have a constitutionally protected interest only in bearing arms typically possessed by law-abiding citizens for lawful pur- 8 Id. at 2838 (quoting 1 WILLIAM BLACKSTONE, COMMENTARIES *139); id. at 2809 (quoting Nunn v. State, 1 Ga. 243, 251 (1846)); see also id. at 2805 (quoting ST. GEORGE TUCKER, View of the Constitution of the United States, in 1 BLACKSTONE S COMMEN- TARIES app. at 300 (St. George Tucker ed., Phila., William Busch Young & Abraham Small 1803) ( [T]he right to self-defense is the first law of nature. )). 9 Id. at See infra Part II.A.

4 134 notre dame law review [vol. 84:1 poses, 11 a principle that would exclude dangerous and unusual weapons such as machine guns. 12 The closest I will come to such an ideal account is the argument that the Second Amendment protects bearing arms in self-defense, not as a means of making us safer from violence, but out of respect for Lockean values of autonomy and individualism. Once again, I offer these arguments not as a defender of the Second Amendment, but rather as a defender of principled reasoning about questions of constitutional law. Sensitivity to the variety of possible interests protected by the Second Amendment is essential to any intellectually responsible discussion of the topic. This is true even if one seeks solely to discern the Founders intent. Unless one is aware of all the reasons they may have thought private arms possession was worthy of constitutional protection, one stands the chance of overlooking their actual reasons. Clarity about the Second Amendment s purposes is particularly important when deciding questions of scope unanswered by Heller. Consider, for example, the appropriate standard of review for laws that infringe upon protected Second Amendment interests a matter that Scalia left open in his opinion. 13 Should the standard be strict scrutiny, 14 which upholds such laws only if they are justified by a compelling governmental interest and are narrowly tailored to further that interest? 15 In free speech contexts, whether strict or intermediate scrutiny is chosen depends upon the strength of the interest at issue. Laws that burden commercial speech, for example, get intermediate scrutiny because the interests standing behind such speech are less significant. 16 We cannot figure out which standard of review the Sec- 11 Heller, 128 S. Ct. at He derives this limitation from United States v. Miller, 307 U.S. 174, 179 (1939). 12 Heller, 128 S. Ct. at See id. at See, e.g., United States v. Playboy Entm t Group, 529 U.S. 803, 813 (2000). 15 See ERWIN CHEMERINSKY, CONSTITUTIONAL LAW (2002). Such a standard might threaten laws prohibiting convicted felons from possessing firearms. Scalia claimed, in dicta, that nothing in our opinion should be taken to cast doubt on such laws. Heller, 128 S. Ct. at But even if one assumes that the considerations of public safety that motivate them are compelling, they appear seriously overinclusive, since many felonies (such as white-collar crimes) do not suggest a tendency to gun violence. See Adam Winkler, Scrutinizing the Second Amendment, 105 MICH. L. REV. 638, 721 (2007). 16 See Ohralik v. Ohio State Bar Ass n, 436 U.S. 447, (1978). Under intermediate scrutiny, a law infringing upon a protected interest is constitutional if it is justified by an important governmental interest and is substantially related to that interest. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 220 (1995).

5 2008] w h y protect private arms possession? 135 ond Amendment deserves without a theory of the interests it protects. 17 Another question of scope left unanswered by Heller is whether the Second Amendment should be incorporated into the Fourteenth Amendment Due Process Clause and applied to the states. Incorporation has been held to apply only to those provisions in the Bill of Rights that are fundamental to the American scheme of justice. 18 For example, the Sixth Amendment right to a jury trial was held to be 17 Another possibility is a reasonableness standard of review, similar to that applied in Fourth Amendment contexts. Under the Fourth Amendment, an invasion of privacy can be constitutionally permissible even if it is only roughly tailored to a governmental interest, and even if that interest is something less than compelling, provided that the invasion is reasonable a matter that is determined by balancing [the] intrusion on the individual s Fourth Amendment interests against [the] promotion of legitimate governmental interests. Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, (1995); see also Skinner v. Ry. Labor Executives Ass n, 489 U.S. 602, 629 n.9 (1989) ( The reasonableness of any particular government activity does not necessarily or invariably turn on the existence of alternative less intrusive means. (citing Illinois v. Lafayette, 462 U.S. 640, 647 (1983))). A reasonableness standard should be distinguished from a rational basis standard. Under the latter, a law would be upheld if it is a rational means of furthering some legitimate governmental interest. See, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, (1973). The existence of a governmental interest supporting the law is all that matters this interest is not balanced against some constitutionally protected interest of the individual. The rational basis test is used in Equal Protection cases when the challenged governmental action does not implicate a protected class or fundamental right. See Romer v. Evans, 517 U.S. 620, 631 (1996). As Scalia notes, a rational basis standard of review for the Second Amendment would provide arms possession with no greater protection than it would have in the absence of the Second Amendment. Heller, 128 S. Ct. at n.27. The court of appeals in Heller and many Second Amendment advocates appear to adopt a reasonableness standard. They claim, for example, that the right to bear arms can be subject to reasonable regulation in the interest of public safety. See, e.g., Parker v. District of Columbia, 478 F.3d 370, (D.C. Cir. 2007), aff d sub nom. District of Columbia v. Heller, 128 S. Ct (2008); United States v. Emerson, 270 F.3d 203, (5th Cir. 2001); Randy E. Barnett & Don B. Kates, Jr., Under Fire: The New Consensus on the Second Amendment, 45 EMORY L.J. 1139, 1190 (1986); Charles J. Dunlap, Jr., Revolt of the Masses: Armed Civilians and the Insurrectionary Theory of the Second Amendment, 62 TENN. L. REV. 643, 677 (1995) ( [The Second Amendment] should be subject to the same balancing test that has been successfully used in reconciling conflicting interests with respect to other amendments. ); Don B. Kates, Jr., The Second Amendment: A Dialogue, LAW & CONTEMP. PROBS., Winter 1986, at 143, ; Lund, supra note 4, at 49 (explaining that the Second Amendment requires balancing individual liberty against public safety ); Van Alstyne, supra note 4, at But see Winkler, supra note 15, at (discussing strict scrutiny language used in United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), and by some Second Amendment advocates). 18 Duncan v. Louisiana, 391 U.S. 145, 149 (1968).

6 136 notre dame law review [vol. 84:1 incorporated because it was a fundamental right 19 that protected criminal defendants interests in a fair and unbiased trial. 20 Once again, we cannot know whether the Second Amendment deserves the same treatment without a theory of the interests it protects. Although I will not seek to resolve these important problems of the Second Amendment s scope in this Article, the interests in private arms possession that I identify must form the basis of any resolution. In his opinion, Scalia did not merely state that individuals have an interest in private arms possession. He described them as having a natural right to bear arms, a right that preexisted the enactment of the Second Amendment. 21 This natural right would have limited the government s authority even if the Founders had failed to recognize it in the Constitution. 22 In keeping with Scalia s account, the justifications I describe will generally seek to explain how the interests individuals have in private arms possession are sufficiently fundamental to limit the authority of the government. In many cases, these justifications will rely on Lockean arguments about the limits of governmental authority. 23 For Locke, the source of the government s authority is the consent of the governed, and the limits of this authority are determined by the scope of that consent. It is useful to discuss the Second Amendment in the context of Locke s theory of political authority, because it was popular among the Founders. 24 But because many today no longer accept this theory, I will also attempt to outline how such justifications might fare under theories that do not take political authority to depend upon consent. 19 Id. at Id. at Heller, 128 S. Ct. at To be sure, he also speaks of the Second Amendment as codifying a preexisting legal right created by the English Bill of Rights. Id. at But Scalia quotes favorably views that this English right was grounded in a natural right. Id. at 2799 ( It is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence. (quoting Journal of Occurrences: March 17, N.Y. J., Apr. 13, 1769, at supp. 2)); id. at 2798; see also David B. Kopel, The Natural Right of Self-Defense: Heller s Lesson for the World, 58 SYRACUSE L. REV. (forthcoming 2008) (manuscript at 1), available at 23 See JOHN LOCKE, THE SECOND TREATISE ON CIVIL GOVERNMENT (Prometheus Books 1986) (1690). 24 See BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION (1967); LEONARD W. LEVY, ORIGINAL INTENT AND THE FRAMERS CONSTITUTION 139 (1988); GORDON S. WOOD, THE RADICALISM OF THE AMERICAN REVOLUTION (1992).

7 2008] w h y protect private arms possession? 137 I. JUSTIFICATIONS BASED ON SELF-DEFENSE As we have seen, Scalia understood the Second Amendment as protecting an individual right to use arms for self-defense. 25 But the question remains why such an individual right exists. What is the value to individuals of bearing arms in self-defense? A. Public Safety The first and most straightforward argument is that allowing individuals to possess arms for use in (justifiable) self-defense increases the likelihood that innocent life will be preserved. Since each of us has an interest in preserving his innocent life, we have an interest in private arms possession, an interest that is sufficiently fundamental to limit the authority of the government. 26 It is not within the power even of a democratically elected government to undermine an individual s interest in the safety from harm that private arms possession brings. The first justification is unique among those discussed in this Article in claiming that a system of private arms possession makes us safer from violence at the hands of our fellow citizens. As we shall see, the remaining justifications do not demand that it have this beneficial effect. Scalia never explicitly endorses the first justification. To be sure, he speaks of the usefulness of arms, and particularly of handguns, when engaging in justifiable self-defense. 27 But even if I am made safer with respect to a fixed population by possessing a gun, 28 it does not follow that a system in which citizens are generally allowed to own arms for self-defense will make me safer than one in which we are all disarmed. Possessing a gun can expose others to risks of harm. These risks include the possibilities: (1) that the owner will use his gun to commit 25 Heller, 128 S. Ct. at For possible examples of this argument, see Samuel C. Wheeler III, Self-Defense: Rights and Coerced Risk-Acceptance, 11 PUB. AFF. Q. 431 (1997); Jeffrey Snyder, Fighting Back: Crime, Self-Defense, and the Right to Carry a Handgun (Oct. 22, 1997), ( [C]itizens have the right to defend themselves against criminal attack. And since criminals can strike almost anywhere at any time, the last thing government ought to be doing is stripping citizens of the most effective means of defending themselves. ). 27 Heller, 128 S. Ct. at This might be doubted. Some of the risks that gun possession creates for the gun s owner are the possibilities: (1) that he might use it to commit suicide; (2) that he might harm himself accidentally; or (3) that an assailant (or a child) might take his gun and use it against him.

8 138 notre dame law review [vol. 84:1 a crime (including a crime of passion against a spouse or family member); (2) that he might use the gun in a mistaken act of self-defense; and (3) that he might accidentally discharge the gun, harming someone. 29 The mutual imposition of these risks of harm might collectively render us less safe compared to compelled disarmament. In short, allowing private arms possession might put citizens in a prisoner s dilemma. The choice to arm dominates, in the sense that it is in one s interest to arm oneself, whether or not others do so as well. But when everyone makes the same choice, the mutually imposed risks of harm make us all worse off Does a System of Private Arms Possession Make Us Safer? Much debate over the Second Amendment has revolved around this empirical question of the effects of a system of private arms possession on public safety. 31 If the government s choice were simply between successful disarmament and uncontrolled individual arms possession, it is very likely that the former would make citizens safer. But the matter is more complicated, because the government s choice is not between these two strategies. First of all, the government s policy of disarmament might be only partially successful. Indeed, it might predominantly affect law-abiding citizens, who would use arms in justified self-defense, without affecting the use of arms by criminals. The D.C. Circuit, whose decision was affirmed by the Supreme Court in Heller, suggested that this is true, at least in the District of Columbia: As amici point out, and as D.C. judges are well aware, the black market for handguns in the District is so strong that handguns are readily available (probably at little premium) to criminals. It is 29 For a discussion of these risks, see Guns in the Home, (April 2002) (last visited Sept. 18, 2008). 30 Arms races between nations are routinely modeled as prisoner s dilemmas, so it should not be odd to understand individuals decisions to arm analogously. See Russell Hardin, Unilateral Versus Mutual Disarmament, 12 PHIL. & PUB. AFF. 236, 248 (1983). 31 Compare Barnett & Kates, supra note 17, at (arguing that the more guns = more murders assertion is empirically disproven), and John R. Lott, Jr. & David B. Mustard, Crime, Deterrence, and Right-to-Carry Concealed Handguns, 26 J. LEGAL STUD. 1, (1997) ( [C]oncealed handguns are the most cost-effective method of reducing crime.... ), with Guns in the Home, supra note 29 ( [G]uns kept in the home for self-protection are more often used to kill somebody you know than to kill in self-defense.... ). This debate is well described in Justice Breyer s dissent in Heller. Heller, 128 S. Ct. at (Breyer, J., dissenting).

9 2008] w h y protect private arms possession? 139 asserted, therefore, that the D.C. gun control laws irrationally prevent only law abiding citizens from owning handguns. 32 Second, the government does not have to allow uncontrolled individual arms possession. It can regulate, at least to some extent, who may own firearms, which firearms may be owned, and how they are used thereby increasing the use of arms in justified self-defense and decreasing accidental and intentional misuse of arms. It is possible, therefore, that a system of private arms possession would make us safer than disarmament. It is worth noting, however, that even if it does makes us safer, this is true within a particular context, which might change. For example, if a policy of disarmament currently undermines public safety because the government is unable to effectively disarm criminals, the technological, legal, or political causes of this inability might later be overcome. One possible criticism of the first justification, therefore, is that if private arms possession makes us safer, this fact is too contingent upon present circumstances to justify anything as enduring as a constitutional right. 2. If Private Arms Possession Makes Us Safer, Does That Mean It Is Beyond the Government s Authority to Disarm Us? Furthermore, even if it is true that a system of private arms possession makes us safer, that does not mean that the government would be acting outside its authority if it disarmed the population. One cannot assume that the government has exceeded its authority simply because it has made a mistake. An essential element of the government s authority is its ability to require a citizen to obey its decisions even if they are wrong. 33 If the government s decisions were binding only if they were the best available, governmental authority would evaporate, since citizens would take themselves to have a reason to conform to a governmental decision only when they thought it was the best available and so would have conformed even in the absence of the decision. They would, in effect, be free of a duty of obedience, able to enforce their own views about the scope of people s rights and duties. This is not to say that governmental authority over individuals must be unlimited. The government, we can assume, is not free to make mistakes concerning the fundamental interests of individuals, such as whether free speech should be suppressed or cruel and unusual punishments imposed. But it must be allowed to make some mis- 32 Parker v. District of Columbia, 478 F.3d 370, 399 n.17 (D.C. Cir. 2007). 33 See, e.g., Philip Soper, Legal Theory and the Claim of Authority, in THE DUTY TO OBEY THE LAW 213, 222 (William A. Edmundson ed., 1999) ( The typical claim of the legal authority is that directions are to be followed even if they are wrong.... ).

10 140 notre dame law review [vol. 84:1 takes, and the question remains why disarmament is not one of those areas where governmental mistakes are permissible. The reason cannot simply be that our interest in safety is so significant that governmental decisions that impact it cannot be mistaken. One problem with such an argument is that if private arms possession makes us less safe, as many people believe, it would be beyond the government s authority to fail to disarm the population. My guess is that few defenders of the Second Amendment would concede that if they are wrong about the beneficial effects of private arms possession, a constitutional amendment requiring disarmament would be necessary. What is more, the government routinely makes decisions for example, concerning the distribution of police protection or when to go to war that have profound consequences for our safety. And yet we consider ourselves obligated to accept these decisions even if they are mistaken. Of course, even if the government does not act beyond its authority simply by making a mistake concerning public safety, it would surely be acting beyond its authority if it failed to provide citizens with a minimal level of safety. Locke thought that individuals had an inalienable right to a certain level of security from harm. It was not within the power of one submitting to governmental authority to give over to the government the right to make any decision it wants concerning his safety. 34 No one can consent to be a slave, that is, someone who may be killed, or left to be killed, at will. 35 In particular, no one could consent to receive a level of security inferior to that experienced in the state of nature (that is, in the absence of governmental authority). 36 After all, one leaves the state of nature and consents to governmental authority to escape the violence and feuding of private enforcement of rights, 37 and no rational creature can be supposed to change his condition with an intention to be worse See LOCKE, supra note 23, 131, at See id. 23, at See id. 137, at 76 ( It cannot be supposed that [people] should intend... to give any one or more an absolute arbitrary power over their persons and estates... ; this were to put themselves into a worse position than the state of Nature, wherein they had a liberty to defend their right against the injuries of others.... ); see also A. JOHN SIMMONS, ON THE EDGE OF ANARCHY 50 (1993) ( Despotical power cannot be acquired by compact. ). 37 See infra Part I.D LOCKE, supra note 23, 131, at Locke s inalienability argument appears to appeal to the fact that it would be irrational to consent to be a slave. But Locke offers another argument that voluntary slavery is impossible, namely because [n]obody can give more power than he has himself, and he that cannot take away his own life cannot give another power over it. Id. 22, at 18. I cannot give someone

11 2008] w h y protect private arms possession? 141 Could one argue that individuals have a right to bear arms because the government, by disarming us, would be failing to provide us with this minimal level of protection? One problem with this argument is that even if the government makes us less safe by disarming us, it does not follow that our total level of protection from violence would be inadequate. The government might still be providing us with the level of protection that is our right (for example, by stationing a policeman on every block). For such an argument to work, therefore, one would have to show not merely that private arms possession makes us safer, but that its contribution to our safety is so profound that the government can provide us with the minimal level of security that is our right only if it allows us to be armed. That is an impossibly tall order. It is important to distinguish the first justification from another, which we will discuss later, that assumes that the government has already failed to provide us with the minimal level of personal security that is our right. 39 As we shall see, one advantage of this later justification (our fifth) is that the government s failure can ground a right to bear arms whether or not arms make us safer. Once the government violates its obligations to provide security, we return to the state of nature, freeing us to use arms to protect ourselves despite any costs to our safety that private arms possession generates. But we are currently considering an argument that is different in two crucial respects from the fifth: (1) it claims that the government can remain within the limits of its authority by giving us a right to bear arms, not that we have such a right because the government has lost its authority over us; and (2) it grounds the right to bear arms in the contribution that arms make to our safety, rather than claiming that we have such a right whether or not we are made safer as a result. A final reason that the public safety benefits of private arms possession might justify a right to bear arms is that governmental decisions concerning public safety that are manifestly wrong are beyond the government s authority, even when the government is providing indithe right to kill me arbitrarily, not because I have the right to kill myself arbitrarily that I cannot alienate, but simply because I have no right to kill myself arbitrarily to begin with. For a further discussion of this argument, see A. John Simmons, Inalienable Rights and Locke s Treatises, 12 PHIL. & PUB. AFF. 175, (1983). Of course, many modern philosophers reject consent theories of political obligation. See infra notes and accompanying text. But even these philosophers see political authority as limited by certain fundamental interests of individuals. These would presumably include an interest in a certain minimal level of security. 39 See infra Part I.E.1.

12 142 notre dame law review [vol. 84:1 viduals with the level of security that is their right. A law prohibiting arms possession might be such a manifest error. The idea that manifest errors are beyond the government s authority would not lead governmental authority to evaporate. It is true that I have not submitted to the government s authority if I reserve the right to reject its decisions whenever they are wrong. But refusing to submit to manifestly wrong decisions is not the same as refusing to submit to wrong decisions. 40 It is compatible with the government s authority to regulate farm production, for example, that farmers would not be bound by a regulation compelling them to sow their fields with stones rather than seeds. A limitation on governmental authority for manifest errors might explain why individuals have a fundamental interest in self-defense (as distinguished from a fundamental interest in bearing arms for selfdefense). Many people, including Locke, have argued that the government cannot permissibly prohibit citizens from engaging in selfdefense in cases of imminent violence. 41 One reason for this limit on the authority of the state may be that the public safety benefits of selfdefense are so manifest. 42 It certainly seems that the prohibition of some acts of self-defense would manifestly fail to promote public safety. Imagine that a government completely forbids self-defense even against culpable aggressors. If a violent intruder enters my home, I may do nothing to defend myself, even if I find flight impossible. The most I can do is inform the intruder that his actions are illegal and subject to punishment by the government. Such a law, if in fact complied with by the population, would compromise public safety. It is true that it would discourage wrongful or mistaken acts of self-defense and we would benefit insofar as we might be the target of such acts. But the cost to our safety would be great, since we would be uniquely vulnerable to acts of violence by culpable aggressors. 43 The possibility of punishment after 40 See JOSEPH RAZ, THE MORALITY OF FREEDOM (1986). 41 See, e.g., LOCKE, supra note 23, 19, at 16 17; see also GEORGE BOWYER, COM- MENTARIES ON UNIVERSAL PUBLIC LAW 233 (London, V&R Stevens & G.S. Norton 1854) ( Every man has a right to defend himself or his property, or even to defend others, where there is not time or opportunity to call the aid of the civil power. ). 42 As we shall later see, individuals right to self-defense might be justified on grounds other than public safety. See infra Part I.B. 43 Examples of public safety arguments for self-defense can be found at PAUL H. ROBINSON, CRIMINAL LAW DEFENSES 131(a) (1984); BOAZ SANGERO, SELF-DEFENCE IN CRIMINAL LAW 1.6 (2006); Claire Oakes Finkelstein, On the Obligation of the State to Extend a Right of Self-Defense to Its Citizens, 147 U. PA. L. REV. 1361, (1999); and Paul H. Robinson, Competing Theories of Justification: Deeds v. Reasons, reprinted in HARM AND CULPABILITY 45, 46 (A.P. Simester & A.T.H. Smith eds., 1996).

13 2008] w h y protect private arms possession? 143 the fact would not be enough to protect us. Indeed, in many cases punishment might not occur at all, since the best witness for the prosecution would be dead. But even if a limitation on governmental authority for manifest errors could justify a right to self-defense, it is unlikely to justify a right to bear arms. A law compelling disarmament in the interest of public safety, even if in fact a mistake, is hardly manifestly a mistake. The question of whether arms possession makes us safer is one concerning which there is reasonable disagreement. This suggests that it is precisely the sort of issue that is within the scope of the government s authority. As we have seen, the opinion of the court of appeals in Heller suggested that the District of Columbia s ban on handguns might be a manifest error, because it irrationally prevent[s] only law abiding citizens from owning handguns. 44 But the District could plausibly argue that the reason the ban currently makes citizens of the District less safe is because of the failure of neighboring states to enact similar bans. Gun violence, it could argue, must be overcome through collective action. And collective action will not occur unless some government takes the first step, even if the first mover will temporarily make its citizens worse off. It is hard to see how it is beyond a government s authority to adopt such a strategy. 3. Are Constitutional Rights That Promote Public Safety Necessary? But let us assume that the Founders, in addition to thinking that there were public safety benefits to private arms possession, believed that these benefits somehow limited the government s authority to disarm the population. It still is unclear why they would have thought that a constitutional right protecting this limit should be necessary. Consider, once again, self-defense in cases of imminent violence at the hands of culpable aggressors. If we have a fundamental interest in self-defense in such cases, why is there no right to self-defense specified in the U.S. Constitution? 45 The reason, surely, is that constitu- 44 Parker v. District of Columbia, 478 F.3d 370, 399 n.17 (D.C. Cir. 2007). 45 To the extent that protection for fundamental interests might be read into the Due Process Clause of the Fifth or Fourteenth Amendment, one could argue that there is such a constitutional right. But the question would still remain why the fundamental interest in self-defense was not explicitly protected the way privacy and dignitary interests were explicitly protected by the Fourth and Eighth Amendments. Courts have generally refused to read a constitutional right of self-defense into the Due Process Clause. See Rowe v. DeBruyn, 17 F.3d 1047, 1052 (7th Cir. 1994); White v. Arn, 788 F.2d 338, 347 (6th Cir. 1986); Fields v. Harris, 675 F.2d 219, 220 (8th Cir. 1982). But see Griffin v. Martin, 785 F.2d 1172, 1177 (4th Cir. 1986), with-

14 144 notre dame law review [vol. 84:1 tional rights are needed to protect only those limits on governmental authority that might conceivably be violated. The dangers that would result from prohibiting all acts of self-defense would be so widespread that a democratic government, being sensitive to the interests of the majority, would never enact such a law. In contrast, the fundamental interests protected by other provisions in the Bill of Rights could conceivably be sacrificed by the majority, making constitutional rights protecting these interests advisable. A common justification for the Eighth Amendment, for example, is that without it the dignitary interests of those convicted of crimes would be sacrificed to create punishments with maximum deterrent effect. 46 Majoritarian processes cannot be counted on to protect these interests, because the costs of protection are felt by everyone (in the form of increased crime), while the benefits are felt only by criminal defendants. A similar story can be told about many other constitutional rights. The standard theory of the Fourth Amendment 47 is that it keeps the privacy interests of those suspected of crimes from being sacrificed for the benefits that the majority would receive from more efficient enforcement of the criminal law. 48 And a common, if not the standard, theory of the Free Speech Clause of the First Amendment 49 is that it keeps the autonomy interests that individuals have in speaking drawn, 795 F.2d 22 (4th Cir. 1986); Isaac v. Engle, 646 F.2d 1129, 1140 (6th Cir. 1980) (Merritt, J., dissenting) (asserting that the Constitution prohibits a state from eliminating the justification of self-defense). For the argument that a constitutional right to self-defense exists, see Nicholas J. Johnson, Beyond the Second Amendment: An Individual Right to Arms Viewed Through the Ninth Amendment, 24 RUTGERS L.J. 1, 1 16 (1992) (arguing that the right to self-defense is incorporated within the Ninth Amendment); Anders Kaye, Dangerous Places: The Right to Self-Defense in Prison and Prison Conditions Jurisprudence, 63 U. CHI. L. REV. 693, (1996); James E. Robertson, Fight or F... and Constitutional Liberty: An Inmate s Right to Self-Defense When Targeted by Aggressors, 29 IND. L. REV. 339, (1995). 46 See, e.g., Roper v. Simmons, 543 U.S. 551, 560 (2005); Furman v. Georgia, 408 U.S. 238, (1972) (Brennan, J., concurring). 47 U.S. CONST. amend. IV ( The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. ). 48 See, e.g., Schmerber v. California, 384 U.S. 757, 767, 772 (1966). 49 U.S. CONST. amend. I ( Congress shall make no law... abridging the freedom of speech.... ).

15 2008] w h y protect private arms possession? 145 their own minds from being sacrificed to protect the public from the dangers that such speech might cause. 50 But we have as yet no analogous story of how the majority would be motivated to sacrifice the fundamental interest in possessing arms to which the first justification appeals. The benefits of arms possession, like the benefits of self-defense, are apparently widespread. If private arms possession makes us safer, the majority should be in favor of it, making constitutional protection unnecessary. 51 Of course, it is not difficult to imagine why a government that is insensitive to the interests of the majority might be motivated to disarm the population. Such a tyrannical government might choose disarmament, despite any costs to public safety, because it is worried that an armed citizenry could rise up against it. But this speaks to the sixth 50 See, e.g., David A.J. Richards, Free Speech and Obscenity Law: Toward a Moral Theory of the First Amendment, 123 U. PA. L. REV. 45, 90 (1974) [hereinafter Richards, Obscenity Law]; David A.J. Richards, Toleration and Free Speech, 17 PHIL. & PUB. AFF. 323, (1988) [hereinafter Richards, Toleration]. 51 It is conceivable that only a minority is made safer by a system of private arms possession, while the majority benefits from disarmament. Such an idea appears to stand behind Lester Hunt s and Todd Hughes defense of the right to bear arms. See Todd C. Hughes & Lester H. Hunt, The Liberal Basis of the Right to Bear Arms, 14 PUB. AFF. Q. 1 (2000). Hunt and Hughes argue that even if private arms possession makes the majority safer, that does not mean that the government may permissibly disarm individuals: Let us assume, for the sake of the argument, that the alleged causal relationship between guns and crime really exists. Is this sufficient to justify a government ban on firearms? In a liberal state, the answer is simple: it is no. In a consistently liberal system, it is considered highly problematic to dispose of the rights and liberties of citizens where these rights and liberties are believed by their owners to be important simply and solely because the community can extract a benefit from doing so. Id. at 2. The fact that guns as a class are dangerous to the population is not a legitimate reason for banning guns. Id. at 11. In particular, a policy of disarmament violates the individual rights of someone who needs arms in self-defense: To disarm [such a person], exposing her to mortal danger, because of behavior for which she apparently bears no causal responsibility at all, is grossly unfair to her. Id. at 12. Hunt and Hughes do not explain, however, why the benefits the minority receives from arms possession give it a fundamental interest that can compromise the safety of the majority. As we have seen, by assuming that the minority is made less safe by disarmament we do not yet know the aggregate risk of harm to which it is exposed. It might be receiving the minimal level of security that is its right. If the package of methods that the government uses to protect citizens from violence is providing it with an adequate level of protection, how can it object that disarmament is part of that package? Hunt and Hughes appear to assume, without argument, that disarmament would take the minority below the minimal level of security that the government must provide.

16 146 notre dame law review [vol. 84:1 justification for the Second Amendment, which I will discuss later. 52 Under this justification, the Second Amendment exists as a protection against tyranny. Individuals should be given arms for the purpose of a popular revolution, rather than for private self-defense. In his opinion, Scalia manages to sidestep the problem of the Founders motivation for constitutionally protecting the public safety benefits of private arms possession. He admits that the enactment of the Second Amendment was not motivated by a desire to protect the use of arms in self-defense. The Founders, he argued, were contemplating the justification expressed in the prefatory clause (probably our sixth). But he insists that even if self-defense had little to do with the right s codification; it was the central component of the right itself. 53 Although the Founders had no motivation to constitutionally protect the use of arms in self-defense, such protection was a side effect of the constitutional protection of its use to overthrow or discourage tyranny. 4. A Puzzle Concerning Scope Assuming that the Second Amendment protects private arms possession because of its public safety benefits, what consequences does this have for the Amendment s scope? If the first justification is correct, the Second Amendment constitutionalizes the empirical judgment that private arms possession promotes public safety. As a result, courts would have to be skeptical about legislatures judgments concerning the public safety benefits of arms regulation. But we do not know how far this skepticism is supposed to go. Assume, for example, that the legislature chooses to ban machine guns because it thinks this will promote public safety. Most defenders of the Second Amendment believe that this is constitutionally permissible. Don Kates has argued, for example, that the right to bear arms would not apply to weapons such as machine-type guns, flamethrowers, artillery, and atomic weapons, whose use, even in strict self-defense, would quite obviously menace one s neighbors. 54 On the one hand, we can criticize Kates argument on the merits: if, as he believes, our system of private ownership of handguns makes us safer, this must be because the system is distributing them to a siza- 52 See infra Part II.A. 53 District of Columbia v. Heller, 128 S. Ct. 2783, 2801 (2008). 54 Kates, supra note 17, at 146; see also Stephen P. Halbrook, What the Framers Intended: A Linguistic Analysis of the Right to Bear Arms, LAW & CONTEMP. PROBS., Winter 1986, at 151, 160 ( [H]eavy ordinances are not constitutionally protected. Nor are other... unusual weapons.... (citations omitted)).

17 2008] w h y protect private arms possession? 147 ble number of law-abiding citizens who are able to exercise good judgment about when they can be used justifiably. If everyone constantly used handguns carelessly or mistakenly if, for example, they often pointed them in the wrong direction disarmament would surely be a better option. But in this respect machine guns look much more like handguns than nuclear weapons. Although the rapid succession of machine gun fire to some extent heightens the risk of unjustified harm to third parties, machine guns are perfectly safe if pointed in the right direction. If Kates is right that our handguns will generally be pointed in the right direction, why wouldn t the same thing be true about our machine guns? The two weapons, it seems, should share the same constitutional fate. But the more fundamental problem with Kates argument is that he appeals to considerations of public safety to determine the scope of the Second Amendment. And the Second Amendment is meant to constitutionally mandate skepticism about public safety arguments. 55 How do we know that Kates argument is not one of those about which a court should be skeptical? To be sure, he has offered a plausible argument that prohibition of machine guns would make us safer. 56 But the Brady Campaign to Prevent Gun Violence can offer plausible arguments that the prohibition of handguns or, indeed, all guns would make us safer. If a court is not allowed to accept the Brady Campaign s arguments, how do we know it can accept Kates? The first justification makes the Second Amendment look very different from many other provisions in the Bill of Rights. As we have seen, rather than having been enacted because of public safety considerations, many provisions in the Bill of Rights exist to keep autonomy interests from being sacrificed for public safety. To determine the scope of these constitutional rights, the strength of these autonomy interests can be our guide. 57 But because under the first justification the Second Amendment protects public safety, nothing like this procedure is possible. 55 See supra Part I.A BRADY CENTER TO PREVENT GUN VIOLENCE, WITHOUT A TRACE: HOW THE GUN LOBBY AND THE GOVERNMENT SUPPRESS THE TRUTH ABOUT GUNS AND CRIME 18 (2006), ( Crime gun tracing studies show that gun laws, by regulating the behavior of gun sellers and buyers in the legal market, have a profound impact on access to guns by criminals in the illegal market. ). 57 It is common in Fourth Amendment contexts to balanc[e]... intrusion on the individual s [privacy] interests against... promotion of legitimate governmental interests, including governmental interests in public safety. Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, (1995) (quoting Skinner v. Ry. Labor Executives Ass n, 489 U.S. 602, 619 (1989)).

18 148 notre dame law review [vol. 84:1 It is not surprising, therefore, that Scalia answered the question of which arms are protected by the Second Amendment in a manner unrelated to considerations of public safety. Drawing on United States v. Miller, 58 he argued that individuals have a constitutionally protected interest only in arms typically possessed by law-abiding citizens for lawful purposes. 59 This principle excludes dangerous and unusual weapons such as machine guns. 60 The fact that a category of weapon passes the Miller test does not mean that we would not be safer if it were prohibited. According to the Miller test, machine guns would be constitutionally protected if their possession became widespread. And yet they still might undermine public safety. 61 By the same token, the fact that a newly invented category of weapon fails the Miller test because, being new, it is not typically possessed does not mean that its widespread possession would not substantially contribute to our safety. 62 The scope of the Second Amendment becomes unrelated to its underlying justification. Indeed the Miller test is unrelated not merely to the interests appealed to in the first justification, but also to those standing behind the sixth. If the purpose of the Second Amendment is to discourage governmental tyranny, citizens arguably have an interest in possessing machine guns, since any tyrannical government would have such weapons at its disposal. 63 As we have seen, a question of scope not answered in Scalia s opinion is the standard of review used to assess laws that infringe upon individuals Second Amendment interests. An example is a law that prohibits all convicted felons from owning any firearms. One might think that if the first justification is correct, strict scrutiny is the appropriate standard. After all, under the first justification the Second Amendment protects citizens interests in their self-preservation. This interest is one of the strongest imaginable. The government, one might argue, cannot sacrifice this interest unless it has an extremely compelling reason. Keep in mind, however, that the first justification gives the Second Amendment a purpose importantly different from other provi U.S. 174, 179 (1939). 59 District of Columbia v. Heller, 128 S. Ct. 2783, 2816 (2008). 60 Id. at See id. at 2869 (Breyer, J., dissenting). 62 See id. 63 Scalia recognizes this problem. See Heller, 128 S. Ct. at 2817 (majority opinion).